(a) in subsection (2), for the words after "any provision" there shall be substituted the words "brought into force under subsection (1) above,"; and

(b) after subsection (2), there shall be inserted the following subsection—

§(2A) Sections 108 to 117 above and Schedules 6 and 7 to this Act shall come into force at the end of the period of six months beginning with the date on which the Criminal Justice and Public Order Act 1994 is passed.".")

§(3) No later than 12 months after the passing of the Criminal Justice and Public Order Act 1994 the Secretary of State shall by regulations made by Statutory Instrument make provision for the coming into force of sections 108 to 117 of and Schedules 6 and 7 to this Act.

§(3A) Regulations made under subsection (3) above may make such provision as the Secretary of State considers necessary or expedient in the light of current circumstances to modify the provisions contained in those sections or Schedules.

§(3B) No regulations shall be made under subsection (3) above unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

§(3C) Before the Secretary of State makes regulations under subsection (3) above he shall consult such persons and organisations as he considers appropriate, and shall lay before Parliament the results of the consultation.".").

My Lords, I beg to move that the House do not insist on their Amendment No. 125, to which the Commons have disagreed, but propose Amendment No. 125B in lieu thereof. With the leave of the House, I shall speak also to my Motion No. 175B, although I am sorry to have to say that there is a printer's error on the Marshalled List which needs correcting because the word "not" was omitted from Amendment No. 175B, the first line of which should read:
that this House do not insist",
rather than "insist".

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My amendment in lieu relates to the much debated question of the compensation for victims of serious crime. The amendment in lieu is designed to provide the Government with all their legitimate anxieties properly satisfied, but before coming to the actual terms of the amendment in lieu, perhaps I may first explain, or remind the House briefly, as to why an amendment is required at all.

Your Lordships will no doubt remember that it was over 30 years ago that the first criminal injuries compensation system came into existence. Successive governments have continued it in force right up until today. The basis of the compensation was a simple enough one. It was that the victim recovered that which he would have received if he had successfully sued the criminal. With some alterations, one major one that has to be kept in mind is that, so far as concerns loss of income or wages, there was a cap which is one-and-a-half times the national average wage.

The common law measure of damages, as it has been referred to, is a fundamental tenet of justice, because it matches the compensation to the individual's circumstances. The amendment is designed to maintain that system in existence. The scheme started life as a non-statutory scheme. The payments were ex gratia. That matter continued without any form of criticism for some 15 years until the Pearson Commission on civil liability and the assessment of damages reported. It reported its agreement to that basis of compensation, but said that it should be put on a statutory basis. The reason for that, quite simply, was that large sums of money were being paid out and it was considered appropriate that there should be parliamentary control over such funds, and that could be achieved only if the scheme was put on a statutory basis.

The Government, within months of the Pearson Commission so recommending, agreed to the recommendation, both as to the scheme being put on a statutory basis and continuing on the basis of common law damages—the ordinary method of compensation. But, although they agreed to that in 1979, it was not until 1988 that they actually implemented their promise, and the Government themselves in the Criminal Justice Act 1988 made extensive provision to put the scheme on a statutory basis. There are in fact some 16 pages to be found in the Queen's Printers' copy of the Act, dealing solely and wholly with compensation of victims of crime.

The obligation to put the matter on a statutory basis was not brought into force immediately because it was discovered that there was an unprecedented rise in claims. Such was the backlog that the noble Lord, Lord Carlisle, who much regrets his inability to be present today as a result of a recent hip operation, asked that the implementation be delayed for the moment until the backlog could be coped with. Instead of the scheme being implemented in 1988 or 1989 it was agreed that it should be streamlined.

Suddenly, on 23rd November 1992 the Secretary of State, in a Written Answer to a parliamentary Question, gave notice that the Government intended to introduced a new tariff-based scheme to compensate victims of
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violent crime. Without prior consultation the Government produced in December 1993 a White Paper entitled Compensating victims of violent crime: Changes to the criminal injuries compensation scheme, which set out their plans in more detail. The tariff system was said by the Government to provide "a better service to victims". Under the heading "Need for change", paragraph 9 of the White Paper states:
Against that background"—
that is a reference to the need for greater speed and consistency of decision—
the Government concluded last year that a scheme based on common law damages was inherently incapable of delivering the standard of service claimants should now reasonably expect. That is a service which produces awards reasonably quickly and in an understandable and predictable manner. Accordingly, the Government decided to introduce a new scheme based on a tariff or scale of awards for injuries of comparable severity.
The nature of the tariff scheme was simply that some 25 different categories of injuries were considered and a lump sum provided for each. No longer was there to be awarded loss of wages, compensation to cover the costs of medical services or special expenses such as adapting a house or dwelling to accommodate a particularly disabled person.

Your Lordships probably know that under the common law basis for damages, a figure is provided for loss of amenities, pain and suffering. The figure is within a bracket worked out over the years and brought up to date in accordance with inflationary tendencies. It compensates the victim merely for the particular injury and the loss of amenities and the pain and suffering. It has been subjected to recent criticism that it is too low, the top figure allowed for the most injured person being about £125,000. The major part of the awards for serious injuries relates to the loss of wages, medical expenses and other such matters.

Perhaps I may indicate how the award may be made up. Earlier this year there was a case involving a man in his mid-40s who had been paralysed from the neck down. He received an award which involved £72,000 for loss of earnings (that is £6,000 per year on the basis of 12 years' purchase), a sum for future medical and care costs and support of £726,000 (that is based on a 15-year period), and a sum for alternations to his house, special care, special transport and so forth of £255,000. None of those items would be provided now to a person thus injured.

The tariff scheme pays no regard to the difference in age of the people injured, their sex or their way of life. Many examples have been given to your Lordships indicating how the seriously injured person will receive but a fraction of what has previously been obtained.

The justification for the amendment to stop the implementation of the tariff scheme was initially that it would work gross unfairness. It would mean that those who suffered the most serious injuries would in future receive but a fraction of what they had previously obtained. Examples were given to your Lordships showing cases in which, under the tariff scheme, people would receive one-tenth or even less of what they achieve now. It operates not only in relation to the people who are most seriously injured but also to those
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whose injuries have the most disabling consequences. They are those whose injuries are not, on the face of it, all that significant: under the tariff system they will achieve £10,000 or £20,000 but they will in fact lose large sums in loss of income, expenditure on medical treatment and the like.

There is a third category of people who will be seriously affected—the dependent relatives of those who are killed as a result of criminal activities. Under the Fatal Accidents Act, which is followed in the ordinary claim and under the criminal compensation scheme, a dependant receives compensation on the basis of his dependency on the: person who had been killed. In criminal compensation cases, that was capped on the basis that the loss of wages had to be calculated as not exceeding one-and-a-half times the national average. It meant that in many cases a dependent widow would receive a six-figure sum for loss of dependency. Under the tariff scheme she will receive £10,000 plus funeral expenses. Therefore, as a result of the tariff scheme, dependent relatives of victims of murder or manslaughter are placed in a desperate situation.

The first justification for the amendment was that the scheme was grossly unfair and that therefore it should not replace the system that had been in existence for the past 30 years. That system followed the well-acknowledged common law basis of taking each individual and compensating that individual in relation to the consequences upon him or her of the injury.

The second justification for the amendment was, as I have indicated, that the Government had piloted through the Criminal Justice Act 1988, in particular 16 pages of provisions which made the non-statutory scheme statutory. Now, as I have indicated by giving an outline of the history, without consulting Parliament and without going back to Parliament to ask Parliament to legislate to change the position, the Government seek to exercise by executive action their prerogative powers and say, "We will not bring into force that which Parliament decided should be brought into force. We will bring into force, without consultation, something entirely different and in fact quite contrary to the whole of the common law basis." That was referred to by the noble Lord, Lord Carlisle, as an abuse of Parliament. The same observation was made by the noble Lord, Lord Lester. I referred to it as a serious affront to Parliament. My noble and learned friend Lord Bridge expressed the matter succinctly in a short intervention when he said:
It seems to me that there is one overriding principle upon which the amendment depends—and that is that the basis of the scheme should be one that is prescribed by law and approved by Parliament and not one that is decreed by ministerial discretion"— [Official Report, 16/6/94; col. 1842.]
That was a matter which appealed very firmly to your Lordships, in particular when the White Paper said that the Government would take a convenient moment to bring in the necessary legislation to countervail what was in the 1988 Act. As has been pointed out frequently, a convenient moment was the Criminal Justice Bill which the Government refused to use for, I submit, the obvious reason; namely, the unfairness of the proposed scheme.

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The last justification put forward was that the costs were spiralling out of control. That was not something referred to in the White Paper. In the White Paper the proposal was put forward on the basis that it would improve the situation from the point of view of the victim. A devastating reply to that suggestion was made by the noble Lord, Lord Carlisle, in our debates. He pointed out that in 1988, when the Act was passed, the average award in 1993–94 prices was £3,486. This year, it is £3,778. If one goes back to 1965, at current prices the average award was £3,455.I notice that in the debate in the Commons, the Minister no longer made that point.

I turn now to the amendment in lieu which is before the House. The Government's anxiety was that if our amendment was implemented, we should have achieved a situation in which a scheme which was fine 30 years ago and which should be altered now would become set in stone. We have sought to deal with that situation and also with the cost argument quite simply by providing the Government with what is a Henry VIII clause.

The amendment in lieu reads:
No later than 12 months after the passing of the Criminal Justice and Public Order Act",
there should be brought into force by statutory instrument the provisions of the 1988 Act. But subsections (3A), (3B) and (3C) read:
Regulations made under subsection (3) above may make such provision as the Secretary of State considers necessary or expedient in the light of current circumstances to modify the provisions contained in those sections or Schedules.(3B) No regulations shall be made under subsection (3) above unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.(3C) Before the Secretary of State makes regulations under subsection (3) above he shall consult such persons and organisations as he considers appropriate, and shall lay before Parliament the results of the consultation".
All that we suggest should take place is that the scheme should be placed on a statutory basis. As the Minister said in the House last week that he will choose a suitable legislative opportunity to put his own tariff scheme on a statutory basis, that should cause him no anxiety.

The amendment in lieu gives the Minister all the discretion necessary to modify the present scheme in the light of current circumstances as he considers necessary or expedient. The only other obligation is that he should do what he should have done long ago; that is, consult the appropriate people and publish the results of his consultation. Therefore, I put forward the amendment in lieu as an indication of a wholly flexible approach, making generous concessions to the Minister, and giving him all the power that he could reasonably require. I beg to move.

§
Moved, That the House do not insist on their Amendment No. 125 to which the Commons have disagreed for the reason numbered 125A, but propose Amendment No. 125B in lieu thereof.— (Lord Ackner.)

My Lords, the noble and learned Lord has deployed his argument with commendable skill and great conviction. However, at
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this stage of the parliamentary process, are we really concerned with the merits of the argument in support of the amendment in lieu?

Is it not the case that, if only to seek to ensure that a Bill which, taken by and large, was much welcomed by your Lordships should not be lost for this Session of Parliament ahead of the gracious Speech, many noble Lords on a Division may wish to support the Government or abstain? That is the reality of the situation.

Apart from the merits, towards the end of the Session there is—and I have made inquiries to this effect—no hope whatever of compromise and no prospect whatever that another place may think again. Although the procedure of the House allows—there is nothing improper in it—circumvention of the claim to privilege of another place by this amendment offered in lieu, to offer it to another place in this situation could only savour of confrontation which would impose an unacceptable strain upon the traditional comity between the Houses.

There is yet another reason. The massive manifestations of public disorder supposedly generated by the Bill leave a sense of shock, horror and revulsion. I have been informed today by the Snow Hill police that on Saturday those manifestations are due to take place again around the precincts of the Temple. We have closed our doors. Is it not perhaps of no little importance that the will of the elected Chamber—and it is the will of the elected Chamber we are considering today— should be accepted and be seen to be accepted to uphold the authority of Parliament?

The essential question has been accurately and fairly expressed by the noble and learned Lord. The issue is quite simple. Should we continue to operate under the existing regime, for the reasons advanced by the noble and learned Lord, or under the regime proposed by the Government? I see that the noble and learned Lord wishes to intervene. I give way.

My Lords, I am much obliged. That is not the proposal at all. I have put forward a careful amendment in lieu which, if looked at, will indicate with total clarity that it is not a proposal to continue the existing system; it is a proposal to give the Government all the discretion that they could desire to change the existing system and to introduce into it, if they so desire, their much-loved tariff approach.

My Lords, I hear what the noble and learned Lord says. However, it is by no means so simple and straightforward. Indeed, if the noble and learned Lord consults Hansard, he will no doubt agree with me. The point is that the proposed amendment in lieu is not acceptable to government, and will not be accepted by them however it is put; for example, if it is put in the way that I outlined or in the manner put forward by the noble and learned Lord. The reality of the situation is that, if we accept the amendment, we move into a system of sterile confrontation. It is as simple as that.

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I have to say that when the Lords amendment to which the Commons disagreed was moved in this House by my noble friend Lord Carlisle of Bucklow (who has been chairman of the Criminal Injuries Compensation Board since 1989) he made a moderate, authoritative speech in support of the amendment. He fairly conceded that substantial improvements could and should be made to the existing regime. Moreover, he sought discussions to that end with my right honourable friend the Secretary of State and would continue to seek them if the amendment were carried.

My noble friend's reservations and objections were expressed in a firm, lucid and wholly courteous manner which, for me, was utterly convincing. I voted on that occasion in support of the amendment and against the Government. However, on this occasion, I shall support the Government because it seems to me that it is now wholly apparent that the Government will not entertain discussions to modify the existing regime and that they are committed, albeit for financial considerations, to implement the regime which they propose.

The amendment offered in lieu could not induce the Government to think again. As I suggested, it could be seen as but a sterile exercise of confrontation. If it were persisted in, the only effect would be to postpone Royal Assent to a good Bill beyond this Session. There would be no point in offering the amendment in lieu to another place, unless your Lordships were minded to persist and that, perhaps, would be pointless.

I invite your Lordships to support the Government on the Bill and to reject the amendment proposed in lieu, not on the merits of the argument as to whether the amendment should or should not be carried but on the practical realities of the situation; namely, that to do so would be wholly pointless.

My Lords, in a perverse sort of way I am rather glad to follow that extraordinary speech. The noble Lord, Lord Campbell of Alloway, started and finished his speech by saying that we should not be concerned with the merits of the argument. But what are we as a revising Chamber if we are not always concerned with the merits of the argument?

After a curious interlude during which the noble Lord appeared to think that it was relevant to our debates this evening to point out that there were some people who might be tempted to demonstrate anywhere near the Temple (and I notice that that is a much more serious problem to him than demonstrations in Parliament Square; but that is his problem), the noble Lord went on to say not that it would be wrong for us to disagree with the House of Commons—oh no: his phrase was that the amendment would not be "acceptable to government". Indeed, I wrote it down.

What sort of a revising Chamber are we if our concern is not with the view of Parliament (of which we are a part) but with government? I suggest to your Lordships that those two doctrines which have been expounded by the noble Lord, Lord Campbell of
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Alloway, should be totally repugnant to the House and that we should very deliberately decide to put them on one side and ignore them for the purpose of this debate.

The noble and learned Lord, Lord Ackner, made, as always, a detailed, passionate, well-informed and lucid speech. I neither could nor wish to repeat the arguments on the merits of the case. However, that is quite different from saying that the merits of the case are not relevant; I am simply saying that I do not wish to detain your Lordships with the merits of the case because they have already been so adequately expressed.

However, I should like briefly to talk about the position in which we find ourselves when considering Commons reasons in response to our amendments. The Criminal Justice Act 1988 put the criminal injuries compensation scheme on a statutory basis. It said quite explicitly that the basis upon which compensation for criminal injuries should be calculated and be comparable to that for civil injuries. That was written into the legislation but not immediately brought into force because, as the noble and learned Lord pointed out, the chairman of the Criminal Injuries Compensation Board, the noble Lord, Lord Carlisle, said, "Please don't do it yet; we can't keep up". However, the principle always was that the criminal injuries compensation scheme should be on a statutory basis.

The opportunity was then taken by the noble and learned Lord and others, with our support, to enforce that statutory basis in the context of the Criminal Justice and Public Order Bill. Members of the other place have now said that they do not wish that to be enforced and that they are proposing to remove that statutory basis for criminal injuries compensation from the Bill. In doing so, they are acting on the advice of the House authorities. Indeed, I quote from Mr. Deputy Speaker who said on 20th October in another place that,
Lords amendment No. 125 raises questions of common privilege because the legal position under the Criminal Justice Act 1988, which activates the statutory scheme by order, is proposed to be changed so that the scheme comes directly into force".
That is not quite correct; it would come into force after six months. However, that is a minor point. The Deputy Speaker continued to say:
An option to spend money is replaced by an obligation".— [Official Report, Commons, 20/10/94; col. 452.]
That was the advice of the Commons authorities.

In his amendment, the noble and learned Lord answers that advice 100 per cent. Under the amendment, an option to spend money is not replaced by an obligation: the principle that criminal injuries compensation should be statutory is maintained—and I believe that your Lordships will wish to support that aim—but the financial responsibility of the Government and of the Home Secretary is retained in the subsequent subsections. On that basis, I believe that to support the amendment and to send it back to the Commons would be the correct thing for a thoughtful and responsible revising Chamber to do. Therefore, I invite your Lordships to support the amendment.

My Lords, perhaps I too may briefly express sympathy with the purport of the amendment. I do so as one who took part in the
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initial debate which we had in this House as long ago as last February, when a considerable number of your Lordships expressed the gravest misgivings about the Government's proposals.

I have three reasons, which I shall give briefly. From the time of the Royal Commission chaired by Lord Pearson, the view has been expressed, and subsequently accepted by Parliament, that sums which are spent under the criminal injuries compensation scheme should no longer be spent under the royal prerogative without accountability to Parliament but should be part of a statutory scheme. I wonder whether there is one of your Lordships who would not endorse that approach on constitutional grounds.

Secondly, I share the concern that where Parliament (in 1988) has enacted with much care a specific form of scheme mirroring the common law and provided that it shall subsequently be brought into force by Statutory Instrument, it is regrettable if instead the Government seek to bring into force a non-statutory scheme while leaving the provisions enacting the statutory scheme on the statute book. I believe that if there are to be changes, and I accept that there may well be a sensible case for changes, these should be made by modification to the statute.

One of the attractions for me of the amendment proposed by the noble and learned Lord, Lord Ackner, is that it would give the Government the opportunity, in consultation, to decide whether to propose modifications. If they did so, those modifications would have statutory effect. I believe that that is the right constitutional way of proceeding, but I also believe that it is the responsible way of meeting the very considerable misgivings that so many, including my noble friend Lord Campbell of Alloway, have expressed in regard to the amendment.

Now I come to the merits, because I believe that they are relevant. Let us reflect that we are concerned here with the victims of crime. We are concerned with a group for which our own Government and our own Home Secretary have expressed great concern. Unfortunately, I believe that the scheme runs contrary to that concern. For the reasons given by the noble Lord, Lord Ackner, it would not only mean that victims of crime were treated less generously; it would mean that they were treated less fairly, and not in accordance with the principles which the common law has laid down over generations, to the approval of the public, and which have been accepted in successive legislation as the proper basis for accepting damages.

After all, we as a society seek to redress wrongs. Your Lordships will recollect that we do this in the case of those who have been wrongly convicted of crime. We provide that they should receive compensation for their loss of liberty. Those who assess that compensation, as I understand it, take into account what the common law might award by damages for loss of liberty. If those damages included loss of earnings, I suspect that that is susceptible of being included in such an award. There has recently been somewhat of a populist outcry against the size of award to which that could lead. I do not join in that outcry, because I believe that those making the awards are acting in accordance with the law. But I find
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it puzzling that we propose to apply a different and lesser standard to victims of crime. I find the anomaly a striking one. I believe it to be totally unfair that there should be no possibility of compensation for loss of earnings.

I ask the Government to take this opportunity for a rethink. I believe that when the implications of their scheme become known, and when it hits hard the widow of a police officer killed in the course of duty, the Government, who will have to take responsibility for this, will reflect on their stance.

There is only one reason why I might hesitate to vote in favour of the amendment; namely, if my noble friend the Minister were to satisfy me that the constitutional arguments were irresistible. I have heard nothing from my noble friend Lord Campbell that even persuades me remotely in that direction. However, of one thing I am sure. The demonstrations against the Bill, which I suspect we all find ugly, are irrelevant. The responsibility for considering the Bill soberly lies within Parliament, and at the moment it lies with us in this House.

My Lords, I agree very largely with what has been said by the noble Lord, Lord McIntosh, and by the noble Lord, Lord Alexander. In particular, I agree with what has been said about the constitutional position, which seems to me to be unanswerable.

I am not enamoured with the criminal injuries compensation scheme. My objection all along to the course pursued by the Home Secretary was that he was acting unconstitutionally, in addition to the respect which the noble Lord, Lord Alexander, indicated. He has taken a power in the 1988 Act which gives him discretion when to bring the provisions into force. He reads that as a discretion not to bring the provisions into force at all but, on the contrary, to bring in a totally inconsistent scheme. I ventured to describe that rudely at an earlier stage of the Bill as cocking a snook at Parliament. That is what it is.

It has been said a number of times in your Lordships' House today that we are a revising Chamber. That is true. However, that does not mean merely a Chamber making suggestions which the Government are able to brush aside, and that we shall then run away with our tail between our legs. We are a revising Chamber and not a suggesting Chamber.

The noble Lord, Lord McIntosh, referred to the common plea of privilege and read out what the Deputy Speaker said. That is a subject which we should approach delicately. We recognise normally that the other place can assert its privilege without giving reasons. Oddly enough, on this occasion the reasons were contained in the passage which was read by the noble Lord,Lord McIntosh.

The decision of the Home Secretary has been challenged in a judicial review. In the first instance, the Government were upheld, but that decision was subject to appeal. If the Court of Appeal holds that the Government have misconceived their power in its
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judicial review, there is no question of a contrast between a discretionary scheme and an obligatory scheme. That whole basis falls.

One of the great advantages of my noble and learned friend's amendment is that it is not the same as the one which your Lordships endorsed at an earlier stage. It gives the Government and the other place an opportunity to consider the whole matter and, particularly, in the light of the fact that an appeal is pending.

The noble Lord, Lord Campbell of Alloway, said that the amendment is not acceptable to the Government. I do not know how he knows that because we have not yet heard from the noble Baroness, Lady Blatch. I suspect that he is right, but that is not the end of the matter. It does not follow that if your Lordships were to carry my noble and learned friend's amendment this Bill would be lost to the Session. There is plenty of time for agreement. There is plenty of time for compromise. I very much hope that your Lordships will endorse the amendment of my noble and learned friend.

My Lords, when I heard the noble Lord, Lord Campbell of Alloway, speaking about the constitution, as a relatively new Member of your Lordships' House I wondered whether the words on my writ of summons were true. I wondered about the point of this House as a revising Chamber and as a constitutional watchdog. After such wise and powerful speeches I wish briefly to address the constitutional issue and the merits.

On the constitutional issue, in 1988 the three estates of the realm—both Houses, with Royal Assent— decided that there should be a statutory scheme based on common law principles. That decision remains on the statute book. However, as noble Lords know, it has not been brought into effect by successive Secretaries of State. There has been no attempt by the present Government to obtain the consent of both Houses of Parliament to repeal that scheme. Instead, prerogative power is to be used to flout the intention of Parliament as expressed in the 1988 Act by introducing a different scheme—one not based on common law principles.

I suggest that, far from doing constitutional damage, the amendment of the noble and learned Lord, Lord Ackner, enables the British constitution to be protected against a misuse of executive power. That seems to me to be one of those rare cases where we shall be justified in taking that step.

The question then arises as to whether privilege attaches in a way that would cause conflict between both Houses. I fully agree with the noble Lord, Lord McIntosh, and the noble and learned Lord, Lord Simon of Glaisdale. The amendment of the noble and learned Lord, Lord Ackner, does not in any way trespass upon the privileges and powers of another place. It requires the Home Secretary to bring the 1988 scheme into force within 12 months after the passing of this Bill, but it confers wide discretionary powers on him to modify those provisions subject to the approval by each House of the necessary regulations.

If the House agrees to the amendment of the noble and learned Lord, the nature and extent of the charges on public funds will be for the Secretary of State and
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ultimately for another place to decide. Why then is it an important step for your Lordships' House to take? I suggest that there are two reasons. The first—I hope that my language is not too strong for the House—is to avoid an affront to democracy. That is what is involved in the conduct that has taken place so far. It is an affront to democracy when a Minister, without seeking parliamentary approval, frustrates the will of Parliament as expressed in the 1988 Act. The second reason is to avoid manifest unfairness and injustice to the most serious victims of crime.

In a previous debate the noble and learned Lord, Lord Ackner, gave many examples. I wish to mention two injustices that would be caused. The examples relate to those who, if the tariff scheme had been in operation, would have had their compensation savagely cut. The first example relates to a brain injury case. It is not disputed that it is an accurate example. The victim required continuous care day and night. The total award was over £500,000 of which future care accounted for £234,000. Under the Home Secretary's scheme he would receive only £40,000.

The noble and learned Lord, Lord Ackner, gave the example of the quite distinct category of families of victims of murder and manslaughter. Again, the facts are not disputed. He cited a case in 1993 involving a woman of 38 who saw her husband die following a stabbing at the front door of their home. She was married with two children aged six and four. She suffered the deepest distress as a result of that traumatic experience. She received general damages of £17,500 and £120,000 for loss of dependency, a total award of £137,000. Under the new scheme she would receive the stock figure of £10,000 by reason of the death of her husband, and £7,500 for her condition, making a total of £17,500 and funeral expenses. As the noble and learned Lord said at the time, such cases illustrate that the innocent families of manslaughter and murder victims whose financial security was previously provided for by dependency awards, will receive nothing for the future.

I respectfully submit that the justice of the case requires your Lordships, unusually, to exercise your powers in supporting the amendment. The Home Secretary's main argument for resisting the will of Parliament is that that would cost too much. I suggest that such a view is not consistent with giving priority to the most serious victims of violent crime. Nor can it be said to be in accordance with the will of the other place which has not been asked to repeal the 1988 Act. The amendment of the noble and learned Lord, Lord Ackner, provides a flexible and fair solution which, I suggest, accords with the will of Parliament as expressed in statutory form.

My Lords, anyone who has sought to help victims knows that it is not an easy matter. In many cases, for reasons of self respect, victims are not always ready to come forward. It will always be a technical question of how best they can be helped. Other amendments have been suggested, but the noble and learned Lord, Lord Ackner, comes before us
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with special knowledge and authority. I am pleased to support his amendment, as indeed my noble friend has done.

I have found, as many others may have found, that if one supports criminals and does what one can to improve the penal system people ask, "What are you doing for the victim?" People have been asking me that since 1955 when I spoke in a debate on prisons in this House. Such a view is not always expressed by the unintelligent. I spoke in a debate in this House on penal matters recently. One of the most distinguished speakers in the House demanded why I had said nothing about the victims. In fact, I had said quite a bit about victims, but he was so confident that I would not mention them that he had prepared his speech along those lines. There is always the assumption that if one favours one side one does not favour the other.

The Government in a sense expressed such a view about a year ago. Without wishing to quote at length from the speeches made by the Prime Minister and the Home Secretary at the Conservative Party Conference last year, they left the strong impression that they would be tougher on criminals and more helpful to victims. They have sought to be tougher on criminals in the provisions of this Act. Whether matters will work out in the long run as they hope, I cannot say.

However, victims of crimes have not been helped. I do not think that anyone denies that the Bill is damaging to victims. No one believes that the provision is on balance favourable to victims. I put it bluntly. The Government's actions are in total contradiction to the indications, the prejudices, of a year ago at the Conservative Party Conference. I am these days a mild speaker. The other day I was called a sweet old gentleman. Therefore I shall say nothing nasty. I content myself with the thought that the attitude of the Government to victims in the past year is one of intolerable humbug.

My Lords, on the merits of the matter, I agreed with my noble friend Lord Carlisle when the Bill was before us previously. On the merits, I cannot deny that I have a great deal of sympathy with what was said today by the noble and learned Lord, Lord Ackner. But however great the merits, above all we must consider our constitutional position. We have the undoubted right, indeed, sometimes the duty, to ask another place to think again. But we should be very careful before exercising a further right which exists to ask them to think again and again. If we were to do so on this amendment, I see no reason why we should not on other amendments, too.

The noble Lord, Lord Lester, spoke of the will of Parliament and an affront to democracy. It. seems to have been overlooked in some of the speeches made by
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noble Lords that the majority of members in another place—rightly or wrongly and exercising their right— voted against the amendment when it came to them.

Yes, indeed, my Lords. They were right to be told and right to bear in mind that it is an issue of House of Commons privilege. That has merely anticipated the next point that I was going to make.

I turn to the amendment to the amendment—if I may accurately describe it in that way. What the noble and learned Lord, Lord Ackner, suggests is that we should now ask Members of another place to give power to the Government to introduce a statutory instrument enabling them to fulfil the wishes that many of us have about the improvement of the criminal injuries compensation. It is a statutory instrument which would require an affirmative resolution of both Houses and do so on a matter of House of Commons privilege. That seems to me to be a constitutional paradox. Speaking for myself, I am not prepared to be a party to it.

My Lords, before the noble Lord sits down, I wonder whether he is aware that it is clearly set out in the Companion at page 121 that:
the Lords need not anticipate what view the Commons may take of any Lords amendments with respect to Commons financial privilege".
On page 122 it states that the Lords,
may offer amendments in lieu of amendments which have been disagreed to by the Commons on the grounds of privilege".
It does not seem to me that there is anything remotely unconstitutional in what we are doing.

My Lords, I am grateful to the noble and learned Lord for reminding us of that. However, it does not overcome the problem that we have that if we ask Members of another place to think a second time, there is a danger of our having a constitutional conflict with another place and of our using the powers that we have under the constitution to an unreasonable extent.

I must say that at this stage of a Session, we should think very carefully before we place ourselves—and perhaps the noble Baroness will allow me to finish the sentence—in that position. I do not think we should do so.

My Lords, I am sorry to interrupt the noble Lord, but he said that we were asking another
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place to think again about the amendment. We are not. We are asking them to think for the first time about a new amendment.

My Lords, quite frankly, we are asking them to think a second time because the amendment to the amendment now proposed by the noble and learned Lord, Lord Ackner, is merely another way of achieving the same purpose. We cannot get round that, however laudable the purpose was and is perhaps still considered to be. I am in favour of the merits.

My Lords, whenever at this stage of a Bill I hear supporters of the Government concentrating exclusively on constitutional objections, I begin to wonder whether they are quite confident of the merits of their case. The noble Lord, Lord Campbell of Alloway, said that the Government would never agree to such an amendment. When I hear that, I am tempted to the Gilbertian reply: "What, never?"

The noble Lord, Lord Renton, made a point about asking the other place to think again and again. My noble friend Lady Seear has already given one answer to that. This is a different amendment, designed to meet the objection made by another place. I shall make a second answer to it. When the original amendment of the noble and learned Lord, Lord Ackner, was carried, I was in the Chamber. I went out to have a cup of coffee after the Division; before I had finished my coffee, it was on the ticker tape that the Home Secretary intended to reverse the amendment. I know that some of us can think very quickly. Those thoughts are not always fit for print. What the Home Secretary could not do in that time was to read the reasons of a Chamber in which there is considerable legal experience. I believe that the Home Secretary deserves a chance to think at greater leisure.

My Lords, first perhaps I may say to the whole House that I regard this amendment as a real amendment and I believe that the House is entirely free to take a view about it and I shall answer it in that vein.

The practical effect of the amendment is nevertheless, as my noble friends Lord Renton and Lord Campbell of Alloway said, very little different from Amendment No. 125 which the noble and learned Lord now proposes that the new clause should replace. Both amendments would require the Government to abandon the tariff scheme and to bring into force the scheme set out in the 1988 Criminal Justice Act. That would have to be done within 12 months of the Bill receiving Royal Assent, rather than within six months, as proposed previously.

Of course, I accept that the facility for modification has been introduced and I shall refer to the limitations of that in a moment. The arguments for and against the amendment have been well rehearsed on several occasions in both Houses of Parliament and elsewhere, I am afraid that there is little fresh I can say on the subject. I firmly believe that the Government's objections to the amendment are compelling and that they bear repetition here today.

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Briefly, we think that the old scheme was too slow, too complex, too uncertain for victims and too expensive. The new tariff scheme is simpler, easier for victims to understand, easier and cheaper to administer and victims will get their money more quickly and with less fuss. It is also a great deal less expensive for the taxpayer—an important consideration for which we make no apology.

As the House knows, the old scheme was based on common law damages and, as such, provided no mechanism for controlling costs which were escalating alarmingly quickly. In 1973–74, the Criminal Injuries Compensation Board paid out £4 million in compensation. In 1983 it paid out £33 million. Ten years on, it paid out over £165 million. That is not just due to increases in the number of applications. Over the past 10 years the average award has increased by some 5 per cent. a year more than inflation, practically doubling in real terms since 1979. Without reform, by 2000 to 2001 the cost of the old common law damages scheme would have exceeded £500 million a year. The cumulative cost to the taxpayer would have been £2.5 billion.

It is not right to expect the taxpayer to fund the scheme on that scale. Let me emphasise that our scheme is by far the most generous in the world and seems likely to remain so for the foreseeable future. We pay out far more compensation than all the other European countries added together—and more last year than the whole of the United States. Indeed, it is worth recording that Great Britain pays over 36 per cent. of all compensation paid throughout the whole world.

May I remind your Lordships of the rationale for the tariff scheme. We are no longer aiming to provide finely judged "compensation" in the same way as before; that is, in the sense of trying, in some way, to put the victim back in the position he would have been in had the attack not taken place. Our White Paper published last December pointed out that there is no "right" sum of money which can achieve that. Instead, the tariff scheme provides a lump sum payment in tangible recognition of society's concern for the blameless victim of violent crime.

But while we have changed the basis of assessing compensation, the basic rules for eligibility have been left much as before. Thus anyone who might have expected an award under the old scheme should get an award under the tariff scheme. And they should get it more quickly.

The latest amendment by the noble and learned Lord, Lord Ackner, purports to give the Secretary of State some flexibility by enabling him to modify the 1988 scheme when laying the regulations that would bring it into force. But that flexibility is illusory. A power to modify is merely a power to make minor changes at the margin, not a power to make changes of substance to the basic terms and conditions of the 1988 scheme. The practical effect of the noble and learned Lord's amendment would therefore be to lock us into an outmoded, complex scheme based on common law damages which would retain all the worst features of the scheme we sought to remedy in our new tariff scheme. It would be slow, overly bureaucratic and even more obscure and difficult for the typical victim to understand
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than the non-statutory scheme just superseded. And we would lose the ability to predict and control costs that the tariff scheme confers. That is not acceptable.

It was neither necessary nor appropriate to use this Bill to repeal the redundant criminal injuries compensation scheme provisions of the 1988 Criminal Justice Act. The repeal would not have come into effect until after the tariff scheme had started on 1st April. Our White Paper, as I have said, made it clear that the time for repeal would be when the tariff scheme was made; statutory, and we have made clear —and again, today, I made it clear—that our intention is to give statutory force to the tariff scheme once we are sure it is working as well as it can.

This Bill is not the right vehicle to make the tariff scheme statutory—it has already started—nor is the time; right. The tariff scheme is quite different from that envisaged in the 1988 Criminal Justice Act. We could not therefore, even if it were appropriate, make the tariff scheme statutory by bringing those provisions into force, even with a power to modify them—whatever the courts might ultimately hold that imprecise word to mean. As I indicated, it is our aim to make sure that the tariff scheme is working properly and effectively, to make any refinements necessary in the light of experience, and then to give it statutory force.

I explained that we could no longer afford to retain a common law damages scheme under which costs have been increasing so rapidly and in a way that cannot be controlled. The only real mechanisms for controlling costs under the 1988 scheme are to exclude certain classes or groups of people from the scheme, for example, those with occupational benefit schemes, or, rather more reasonably perhaps, to raise the lower limit below which no award is payable, or to reduce the multiplier used to calculate loss of earning, or both of those things.

The lower limit would have to be raised by a considerable amount even to deliver quite modest savings. Working on estimated figures for the current year, 1994–95, doubling the lower limit from £1,000 to £2,000 would cut the compensation bill by 20 per cent. Yet it would cut the number of successful claimants by 45 per cent. That would mean that some 20,000 victims who might have expected to get an award this year would no longer do so. Raising the lower limit to £4,000 would cut the compensation bill by 40 per cent., saving about £75 million on £175 million—but only at the expense of reducing the number of successful claimants by a further 13,000. That would leave only about 10,000 victims getting any award at all. It would definitely not be welcomed by Victim Support, which favours giving awards to more victims by reducing the lower limit, not raising it.

The amendment also requires my right honourable friend the Secretary of State to consult such persons and organisations as he considers appropriate before making the regulations which would bring the statutory scheme into effect. There has been extensive consultation. Since announcing our intention to change the scheme in November 1992 we have received representations and comment from just about every person or organisation that has an interest in criminal
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injuries compensation, including Members of both Houses of Parliament. People have set out their respective, and often conflicting, views. We have already thought long and hard about many of the ideas that have been put forward. But none of them, apart from the tariff scheme itself, gets to grips with the need to bring costs under control with simplified, easily understood and easily administered arrangements that get awards to victims quickly.

Virtually everyone would have got an award under the former scheme. Those people should get an award under the tariff scheme. Sixty per cent. of those beneficiaries will get as much money or more than they would have received under the superseded scheme. My right honourable friend the Secretary of State has undertaken to review the tariff bands every three years.

We have made clear previously that the terms of the tariff scheme are not immutable. If we can refine or improve the tariff scheme in the light of experience, we will. Once we are sure that it is working as effectively as it should, we shall give it statutory effect at the first suitable opportunity.

The Government have been accused of acting unlawfully and unconstitutionally by bringing in the tariff scheme by executive action while unimplemented provisions to the 1988 Criminal Justice Act remain on the statute book. The Government's action, as the noble and learned Lord, Lord Simon, reminded us, was challenged by judicial review. In a judgment on 23rd May, the High Court ruled that the Government had not acted illegally, improperly or irrationally. An appeal against the decision was heard throughout yesterday and today. I understand that judgment has been reserved. I am sure that noble Lords will agree and understand that, until a final judgment has been delivered by the court, it would not be right for me, or indeed anyone else, to say anything further about the propriety of the Government's action.

Much was said about the most seriously affected victims. Tariff award is not the only source of state aid for many victims. Generous long-term help is also available from the National Health Service, the Department of Social Security and indeed local social services. Many victims also have occupational benefit schemes or insurance arrangements.

The make-up of the tariff award is based on 20,000 awards made by the CICB. Each tariff award can be said to include an element of each of the heads of damage payable under the old scheme. But the elements are no longer separately quantified.

The effect of the new clause—this important point was very well made by my noble friends Lord Renton and Lord Campbell of Alloway—does not give my right honourable friend the Home Secretary unfettered discretion to change the 1988 scheme. Indeed, I suspect that some noble and learned Lords who have spoken in this debate would take a very dim view of my right honourable friend inviting this House to use secondary legislation to modify, seriously and quite substantially, primary legislation. It commits him to a
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common law damages scheme and therefore a minor modification would not make a great deal of difference to anything other than bringing in the original scheme.

The matter was debated in another place on two separate occasions. On each occasion a substantial majority voted against reinstatement of the old scheme. The amendment asks the House to reinstate, albeit by secondary legislation, the old scheme. I therefore ask your Lordships to respect the wishes of another place. While I accept that noble Lords have the right to do otherwise, I ask the House to reject the amendment.

My Lords, I have a number of short points. First, on the question of merits, on 16th June, some four months ago, the noble Lord, Lord Campbell, said:
I hope that when my noble friend the Minister replies he will consider four points in particular: the manifest injustice of the tariff scheme; its absence of any flexibility; the manifest abuse of Executive power which has ensued; and the fact that various justifications that have been advanced by the Home Office have been demonstrated to be manifestly misconceived".—[Official Report, 16/6/94; col. 1842.]
Not one of those items has been replied to today. The noble Lord, like myself, awaits the answers to those questions.

With regard to finance, which has been much in the forefront of the Government's defence, it is significant that it was never suggested in the White Paper as the basis. It has never been part of the consultation process. The noble Lord, Lord Carlisle, who dealt with this matter in great detail, said in terms:
The now accepted principal ground of saving money — proceeds on a false basis and is supported by statistics which, to say the least, are wholly misleading and by assumptions about future expenditure which I believe to be unjustified".—[Official Report, 16/6/94; col. 1833]
Reference was made to £500 million in four to five years' time. The present bill is £165 million. It is difficult to follow the basis on which it will accelerate. It may be that the Home Secretary has reached the pessimistic view that perhaps prison does not work. That is about the only explanation that one can follow. There is no form of justification given for that projected figure.

The next matter that I wish to raise is the reference to the powers given under the amendment in lieu. Let me first make the point that this is not an amendment of an amendment. It is an amendment in lieu. It is self-contained. It does not jog back to the previous amendment. But the power which is given to the Secretary of State is that he
may make such provision [in the scheme] as [he] considers necessary or expedient in the light of current circumstances to modify the provisions contained in those sections or Schedules".
I respectfully submit that that is an unlimited power to modify. The anxiety of the Minister that she is in a straitjacket is wholly unjustified.

What is common ground throughout this entire debate—it has never been disputed—is that the savings are to be made at the expense of those who
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can least afford it. The savings are to be made by slashing the compensation to those most grievously injured, those whose injury has caused the greatest effect upon their standard and mode of living and finally the dependants of those who have been murdered or the subject of manslaughter. It is difficult to follow how on earth the Government can say: "We save money on a scheme for compensating the victims of crime by making savings from the compensation for those victims who have suffered the most."

Finally, on the constitutional point, it is no use hiding behind the judicial review proceedings. The judicial review proceedings are devoted to an entirely different issue. The issue is whether the Government have acted unlawfully. The complaint made in this House is that they have acted unconstitutionally. They have abused their parliamentary powers.

My Lords, I am most grateful to the noble and learned Lord for giving way. I think that it is presumptuous of the noble and learned Lord, if I may be so bold, to suggest that the Government have or this House has abused their powers. A court has heard the case once and at this moment judgment is reserved on the appeal. Therefore I feel that it would be quite wrong to presume guilt in the absence of a proper judgment.

My Lords, I am sorry that I did not make my point clear. I thought that I had made it clear. The issue before the court is whether the Government have acted unlawfully; that is, beyond their powers, ultra vires. The issue that is debated here is whether the Government have acted unconstitutionally; which is not to exceed their powers but to abuse them and to abuse them by the simple process of conducting legislation in 1988 which provided in terms for a scheme to be made statutory and then, without returning to Parliament, to exercise executive power and do precisely the contrary to that which Parliament had laid down in 1988 at the suit of the Government. That, as everybody else in this Chamber has said, is an affront to Parliament. It is in that context that I use the phrase.

I was finally about to say that, if we are a revising Chamber which has any form of independence and we do not ask the Government to think once more about their unconstitutional behaviour, it is very difficult to know in what circumstances one can ever ask them to think again. I commend the Motion.